X versus The Principal Secretary,
Health and Family Welfare Department, Govt. of NCT of Delhi &Anr.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
|
NAMEOFTHECASE |
X versus The Principal Secretary, Health and Family
Welfare Department, Govt. of NCT of Delhi &Anr. |
|
CITATION |
Civil Appeal No 5802 of 2022 |
|
DATEOFJUDGEMENT |
September
29, 2022 |
|
APPELANT |
X |
|
RESPONDENT |
The
Principal Secretary, Health and Family Welfare Department, Govt. of NCT of
Delhi &Anr. |
|
BENCH/JUDGE |
Dr Dhananjaya Y Chandrachud A S Bopanna J B Pardiwala |
|
STATUTESINVOLVED |
Medical
Termination of Pregnancy Act 1971 |
|
IMPORTANTSECTIONS/ARTICLES |
Section 3(2)(b)
of the MTP Act and Rule 3B of the MTP Rule Article 14
of the Constitution Rule 3B(c)
of the MTP Rules |
Abstract
The
judgement of the present case i.e,X v The Principal Secretary, Health and
Family Welfare Department, Govt of NCT on abortion rights has been extensively
addressed as notable. It has reinforced the bodily and reproductive autonomy of
pregnant persons. At the beginning, the judgment is a progressive as the social
order is yet to normalise concepts like sex education, premarital sex, mental
health, non-binary gender, etc, the broadminded pronouncements in the judgment
will positively serve to expand the reproductive rights context.
Introduction
With
the introduction of the Medical Termination of Pregnancy (MTP) in 1971,
abortion was legalized in India under various circumstances. In India,
termination of pregnancies is to be done strictly in terms of the MTP Act. The
preamble of the MTP Act states that it is an “Act to provide for the
termination of certain pregnancies by registered medical practitioners and for
matters connected therewith or incidental thereto.”
The
MTP Act specifies the requirements to be fulfilled for terminating a pregnancy,
including the persons who are competent to perform the termination procedure,
circumstances when abortion is permissible, and places where the procedure may
be performed.
Prior
to 1971, abortion was criminalized under Section 312 of the Indian Penal Code,
1860, which was described as intentionally "causing miscarriage".
Unless an abortion was performed to save a woman's life, this was a crime and
the woman/household breadwinner was considered the criminal. Voluntarily
causing a miscarriage in a pregnant woman is punishable by imprisonment of up
to three years or a fine, and women who use this service are punishable by
imprisonment of up to seven years and/or a fine.
In
the 1960s, when 15 countries legalized abortion, India considered its legal
framework for abortion. The Ministry of Health and Family Welfare (MoHFW) has
been put on high alert due to the alarming increase in abortions. To address
this, the Indian government set up a committee in his 1964 chaired by Shantilal
Shah to draft the Indian Abortion Act. The Commission's recommendations were
adopted in 1970 and presented to Congress as a bill on medical abortion. This
law was passed in August 1971 as the Abortion Act which he drafted by Sriripati
Chandrasekhar.
The
Medical Termination of Pregnancy (MTP) Act, 1971 provides the legal framework
for the provision of CAC services in India. Abortion is permitted for a wide
range of medical conditions up to the 20th week of pregnancy, as detailed
below.
·
If
the continuation of the pregnancy would endanger the life of the pregnant woman
or would cause serious harm to her physical or mental health;
·
When
there is a significant risk of severe disability at birth or death due to
mental or physical abnormalities.
·
in
the case of pregnancy due to rape (suspected serious violation of the woman's
mental health);
·
If
the cause of pregnancy is the married woman's or her husband's failure to use
contraceptives (presumed to be a serious violation of the woman's mental
health).
·
If
the family's socioeconomic situation is poor and the couple already has 2-3
children
The
MTP Act stipulates that: (ii) until such time as the pregnancy can be
terminated; (iii) where the pregnancy can be terminated; MTP Rules and
Regulations, 2003 provide detailed training and certification requirements for
providers and facilities. Provides reporting and documentation requirements for
safe and legal abortion.
Facts of the Case
Appeal
follows decision of High Court Division Bench in Delhi dated 15th July 2022.
The appellant is seeking consent to terminate her pregnancy before end of her
24 weeks on July 15, 2022. The applicant has had one intrauterine pregnancy
equivalent to 22 weeks of gestation. The applicant is an unmarried woman around
the age of 25 with a consensual pregnancy.
The
applicant said, she wanted to terminate her pregnancy because her partner
refused to marry her at her last stage. She said she didn't want her pregnancy
to continue because she feared the "social stigma and harassment"
associated with her being Unmarried plus single parent, especially women. In
addition, the petitioner she was mentally unprepared if she had no means of
livelihood raise and care for children like an unmarried mother. Unwanted
pregnancies are associated with serious and immeasurable risks violation of
their mental health.
The
appellant sought permission to terminate her pregnancy in terms of Section
3(2)(b) of the Medical Termination of Pregnancy Act 19712 and Rule 3B(c) of the
Medical Termination of Pregnancy Rules 20033 (as amended on 12 October 2021).
The appellant instituted a Criminal Miscellaneous Application4 for grant of
interim relief to terminate her pregnancy during the pendency of the Writ
Petition.
Section
3(2)(b) of the MTP Act and Rule 3B of the MTP Rules are subjective and
prejudiced because they eliminate unmarried women from their domain. They
discriminate against women on the ground of marital status, in abuse of Article
14 of the Constitution.
The
High Court rejected the Criminal Miscellaneous Application, effectively
rejecting prayers A and B. The High Court observed that Section 3(2)(b) of the
MTP Act was inapplicable to the facts of the present case since the appellant,
being an unmarried woman, whose pregnancy arose out of a consensual
relationship, was not covered by any of the sub-clauses of Rule 3B of the MTP
Rules.
ISSUE RAISED BEFORE THE COURT
1. Whether "unmarried
woman" can be allowed to abort her 24-weeks pregnancy arising out of a
consensual relationship?
2. Whether Rule 3B includes
unmarried women, single women, or women without a partner under its ambit?
ARGUMENTS FROM THE
APPELANT SIDE
□
The
appellant is an unmarried woman aged about twenty-five years, and had become
pregnant as a result of a consensual relationship. The appellant wished to
terminate her pregnancy as “her partner had refused to marry her at the last
stage.”
□
She
stated that she did not want to carry the pregnancy to term since she was wary
of the “social stigma and harassment” pertaining to unmarried single parents,
especially women. Moreover, the appellant submitted that in the absence of a source
of livelihood, she was not mentally prepared to “raise and nurture the child as
an unmarried mother.”
□
The
appellant sought permission to terminate her pregnancy in terms of Section
3(2)(b) of the Medical Termination of Pregnancy Act 19712[1]
and Rule 3B(c) of the Medical Termination of Pregnancy Rules[2]
2003 (as amended on 12 October 2021). The appellant instituted a Criminal
Miscellaneous Application4 for grant of interim relief to terminate her
pregnancy during the pendency of the Writ Petition.
□
Section
3(2)(b) of the MTP Act and Rule 3B of the MTP Rules are arbitrary and
discriminatory because they exclude unmarried women from their ambit. They
discriminate against women on the ground of marital status, in violation of
Article 14 of the Constitution.
□
Ms.
Aishwarya Bhati, learned senior counsel and Additional Solicitor General ably
assisted the Court in the interpretation of Section 3(2) of the MTP Act and
Rule 3B(c) of the MTP Rules. She made the following submissions in support of
the argument that Rule 3B(c) extends to unmarried or single women who are in
long-term relationships.
ARGUMENTS FROM THE
RESPONDENT SIDE
□
Section
3(2)(b) of the MTP Act was inapplicable to the facts of the present case since
the appellant, being an unmarried woman, whose pregnancy arose out of a
consensual relationship, was not covered by any of the sub-clauses of Rule 3B
of the MTP Rules.
Related Provisions
□
Medical
Termination of Pregnancy Act (Amendment) Act [3]2021
(8 of 2021)
Ø “Section 3 - When
pregnancies may be terminated by registered medical practitioners
(1)
Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a
registered medical practitioner shall not be guilty of any offence under that
code or under any other law for the time being in force, if any pregnancy is
terminated by him in accordance with the provisions of this Act.
Ø 2[(2) Subject to the
provisions of sub-section (4), a pregnancy may be terminated by a registered
medical practitioner,--
(a)
where the length of the pregnancy does not exceed twenty weeks, if such medical
practitioner is, or
(b)
where the length of the pregnancy exceeds twenty weeks but does not exceed
twenty-four weeks in case of such category of woman as may be prescribed by
rules
made
under this Act, if not less than two registered medical practitioners are, of
the opinion, formed in good faith, that-
(i)
the continuance of the pregnancy would involve a risk to the life of the
pregnant woman or of grave injury to her physical or mental health; or
(ii)
there is a substantial risk that if the child were born, it would suffer from
any serious physical or mental abnormality.
□ Constitution of India
Ø Article 21: - Protection
of life and personal liberty No person shall be deprived of his life or
personal liberty except according to procedure established by law.[4]
Ø Article 14: - (Equality
before law) The State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth.[5]
Ø Article 38(2):-The State
shall, in particular, strive to minimize theinequalities in income, and
endeavour to eliminate
inequalities in status, facilities and opportunities,
not only amongst individuals but also amongst groups of peopleresiding in
different areas or engaged in differentvocations.”[6]
Ø Article 47 :- Duty of the
State to raise the level of nutrition and thestandard of living and to improve
public health – The Stateshall regard the raising of the level of nutrition and
thestandard of living of its people and the improvement ofpublic health as
among its primary duties and, in particular,the State shall endeavour to bring
about the prohibition ofthe consumption except for medicinal purposes ofintoxicating
drinks and of drugs which are injurious tohealth.[7]
Judgement
In
the landmark ruling, the Supreme Court entails all women, whether married or
single, to have an abortion within 20 to 14 weeks, even if the pregnancy is the
result of a consensual relationship. The Supreme Court ruled that because the
interpretation of the Medical Abortion Act does not recognize a distinction
between married and unmarried women, unmarried women can have abortions for up
to 24 weeks in the same manner as married women.
The
Supreme Court said sexual assault by a husband can take the form of rape, and
the meaning of rape must include the meaning of spousal rape under the MTP Act
and the Rules for Abortion Purposes.
Reproductive
rights activists welcomed the ruling, saying the court had ensured the law was
non-discriminatory and extended safe and legal abortion rights to single women.
“The
artificial distinction between married and unmarried women cannot be
maintained. Women must have the autonomy to exercise these rights freely,” said
Judge Dhananjaya Y. Chandrachud. The court said denying single women equal
rights to abortions violated their right to equality before the law under the
Indian constitution.
Countries
should ensure information on reproduction and security. Sexual practices are
pervasive in all sections of the population. The State should Enable that all
sections of society to have access to contraceptives Unwanted Pregnancy and
Family Planning and that the medical facility and RMP are ubiquitous in the
city and affordable for everyone. The government must ensure RMP treats all
patients equally and empathetically. Treatment should not be rejected because
of caste or other social or economic factors.
Only when these recommendations are realized the right to autonomy and
dignity of the body can be realized. Previously, India's abortion law allowed
married women to have abortions up to 24 weeks' gestation, but limited
unmarried women to 20 weeks. On September 29, 2022, the court extended her
24-week period to all women.
Medical
Termination of Pregnancy (Amendment) Act of 2021 has addressed the “continuing
crisis” of unsafe abortions. Close to eight women die every day in India due to
unsafe abortions. Sixty-seven per cent of the abortions carried out in the
country between 2007-2011 were classified unsafe by studies. One of the
reasons, the Parliament was aware, was that women outside marriages and in poor
families were left with no choice but use unsafe or illegal ways to abort unwanted
pregnancies. Hence, to address this issue, the 2021 amendments had included the
word ‘partner’, showing that the law was not just concerned about women who
undergo pregnancy within marriage, but outside marriage too. After all, the
medical risk was the same for both married and unmarried women.
Reproductive
autonomy required every pregnant women to have the intrinsic right to choose to
have or not have to undergo abortion without any consent or authorisation from
a third party
Conclusion
The
social stigma surrounding single women who are pregnant is even greater and
they often lack support from their family or partner. This leads to the
proliferation of persons not qualified / certified to practice medicine. Such
persons offer the possibility of a discreet abortion and many women may feel
compelled by their circumstances to engage the services of such persons instead
of opting for a medically safe abortion, this oftenleads to disastrous
consequences for the woman.
Provisions
of the MTP Act amended in 2021 include the word "partner" instead of
"husband" in the explanation to section 3, which shows the intent of
Parliament that it was not to confine the situations arising only out of
matrimonial relationships.
The
use of the word "partner" ascribes to an intention of the Parliament
to cover "unmarried woman" under the Act which is in consonance with
the constitution.
If
laws and regulations were to be construed to "extend their benefits only
to married women, they would perpetuate stereotypes and social notions that
only married women would engage in sexual intercourse and benefit as a
result." said the court.
Article
21 of the Constitution recognises and protects the right of women to have an
abortion when their mental or physical health is in jeopardy. Importantly, only
women have the right to their own bodies and should be the final decision
makers as to whether or not they wish to have an abortion.
It
is an attack to deprive women of autonomy not only of their bodies, but of
their entire lives about their dignity.
On
the evolution of the law on abortion, the bench said “while much of law’s
benefits were (and indeed are) rooted in the institution of marriage, the law
in modern times is shedding the notion that marriage is a precondition to the
rights of individuals (alone or in relation to one another). Changing social
mores must be borne in mind when interpreting the provisions of an enactment to
further its object and purpose”.
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